When the Constitutional Congress met in 1787, the delegates found that they could not avoid discussing the issue of slavery. Already one could see the diverging interests of the North and the South, conflicts between slave states and free states. The Constitution as a whole can be viewed as document that tried to merge the various interests of different groups in the soon-to-be United States into a workable system. This holds true for slavery as well. Two compromises concerning slavery emerged in the Constitution. First, in order to assuage Northern worries about growing representation in the slave states, it was agreed that 3/5 of the number of slaves would be counted for the purposes of representation and taxation.1 The other compromise, found in section 9 of Article I of the Constitution, stipulated that Congress would not be able to prohibit the importation of slaves before 1808, although they may tax them. This helped to counter Southern fears that Congress' power to regulate commerce would be used to abolish slavery. This provision could not be changed by amendment, thus, giving the slave trade a 20 year reprieve.2 Hugh Thomas writes that "the compromise on slavery occurred because the delegates as a whole . . . agreed with Roger Sherman of Connecticut, . . . who made the observation that it was better to let the Southern states import slaves than to part with those states.'"3 This marked the beginning of a pattern whereby other concerns, be they political or economic, overrode the moral questions of the slave trade.
Although the Constitution prohibited Congress from abolishing the slave trade before 1808, individual states were free to take that initiative whenever they pleased. New Jersey and Rhode Island led the way in 1787, with Massachusetts, Connecticut and New York soon following. By 1806, South Carolina was the only state that had not restricted the slave trade.4 Congress also took steps to restrict the trade in ways not forbidden by the Constitution. In 1790, a law prohibited US citizens from engaging in the slave trade to foreign ports,5 and in 1794 it became illegal to manufacture, equip, or otherwise assist any vessels destined for the slave trade.6
Legislating the Abolition of the Slave Trade:
As 1808 approached, the issue of the slave trade once again appeared in Congress for consideration. In December 1805, a bill was introduced to the Senate prohibiting the importation of slaves to take effect in 1808, however, in April it was decided to postpone discussion of the issue until a later date.7 Events in the House of Representatives took a somewhat different course, and because the proceedings are better documented, they will form the bulk of my argument.
Representative Sloan from the state of New Jersey submitted a bill to the House floor in December 1805 that called for the imposition of a $10 duty per slave imported into the United States -- the maximum amount allowed under the Constitution.8 The debates surrounding this bill, which later evolved into a bill to prohibit the actual importation of slaves highlights important issues in US economic policy.
The opposing sides of the debate can be placed into two categories: the "moralists" and the "pragmatists." Neither side advocated the perpetuation of the slave trade, they differed merely in their approach to the legislation. Moralists not only found the importation of slaves to be abhorrent, but believed that Congress should do everything in its power to stop it forthwith. The pragmatists, on the other hand, although they also opposed the importation of slaves, took a very rational and calculated position, taking into the broader legal and commercial interpretations of the problem. These two unofficial camps did not form right away, nor did they exhibit the traditional division between North and South as one might expect.
A few issues regarding the imposition of a $10 duty are relevant to this discussion. Even though the Constitution explicitly stated that Congress had the right to impose such a tax, some legislators questioned this right. It was argued that, naturally, Congress possessed the power to regulate commerce and impose duties and other restrictions on trade. Slaves were technically merchandise, however unfortunate that classification may be, and were therefore within Congress' power to tax.9 This shows the tendency of some Congressmen to emphasize the commercial status of slaves, rather than their human status.
Another issue raised questions of states' rights and Congress' power to interfere with the states. Because South Carolina was the only remaining state which still allowed the trade, there was concern among some legislators that South Carolina would bear an unfair burden of taxation, and this violated the principle that all taxes and duties should be equal for all the states.10 The counter argument ran that the duty was legal and uniform because no state was exempted from the tariff; and if South Carolina did not want to pay it, it was within her power to abolish the trade within her own borders.11
The moralist position finally began to take shape out of the concern that imposing a duty on imported slaves would constitute an acknowledgment, and therefore encouragement of the trade. Mr. Alston of North Carolina asserted that a duty would not hinder the importation of slaves, but "merely sanction it."12 Congressman Early of Georgia later concurred, and asked if "the price they are to get [is] worth the evil they create?"13 The moralists perceived this duty as a useless half measure that did nothing to stop the trade and soiled the United States' hands in the process.
Others took a more practical approach in light of the restrictions in the Constitution. Mr. Broom of Delaware noted that this was the best alternative: "I would be glad if it should have the effect of prohibiting the importation . . . but though it may not have this effect, it may depress the great stimulus the trader has to carry on this trade . . . This is all we can do."14 It was also noted that, as a matter of general economic principle, duties do not encourage, but rather restrict trade.15
In February 1806, an amendment was added to the tax bill calling for the prohibition of the slave trade on 1 January 1808. A petition from the American Convention for Promoting the Abolition of Slavery was also read, requesting such an act. Some members had reservations about Congress' power to legislate on the matter before 1808, but the issue was nonetheless submitted to committee for consideration.16
In December 1806 a bill abolishing the slave trade was submitted to the Committee of the Whole for debate and amendment. The one issue that best demonstrates the difference between moralists and pragmatists was the issue of forfeiture, or what should be done with the confiscated slaves.
Some representatives argued that it was not only the government's duty, but its right to manumit the seized cargo. Mr. Sloan drew a comparison to British law where any slave who entered Britain was automatically freed. If the slaves were to be forfeited to the national government and became property of that government, it was Congress' prerogative to set the slaves free.17 Others emphasized the moral hypocrisy of stopping the slave trade, but then turning around and selling the cargo anyway. Mr. Smilie of Pennsylvania argued that if the slaves are not set free, the United States cannot "avoid the odium of becoming themselves slave traders."18 Representative Pitkin of Connecticut lamented that the profit from such forfeited slaves would be "lodged in the public coffers."19
The pragmatists opposed the manumission of the slaves on the basis of practical matters alone, not principle. Mr. Alston argued that because of the laws of the individual states, the government "cannot . . . prevent them from being slaves once brought into the United States, the only way is to prevent importation."20 This, however required that there be sufficient incentive on the part of all states to enforce the law. Because nearly all the imported slaves arrived in the south, where slavery was legal, large numbers of blacks would be freed on Southern soil. Mr. Early argued that Southerners would be unlikely to cooperate with the law out of fear that large numbers of freed blacks would lead to insurrection and revolt.21 Forfeiture seemed to be the only means of prevention.
The Congressmen themselves seemed to grasp the rift that divided them. Nathaniel Macon, Speaker of the House believed all members were truly united in their goal: "I believe that on this subject there is but one opinion, which is effectually to prohibit the importation of slaves into the United States. This sentiment, I believe, pervades the breast of every member of the community."22 While that may be true, he made his position clear in the debate on forfeiture: "I still consider this a commercial issue. . . .We derive our powers of legislation, not from the law of nations, but from the Constitution."23 Mr. Smilie, making one last appeal to the supremacy of morality countered: "but this question is connected with principles of a higher order than those merely commercial." He then refered to the Declaration of Independence and its central creed that all men are created equal.24 These two positions succinctly sum up the differences in thought over the means to abolish the slave trade. The question remained, who prevailed?
During January and February 1807, the House of Representatives and the Senate worked on developing mutually acceptable bills. The final vote in the House was 63 for, 49 against. President Thomas Jefferson signed the bill into law on 2 March 1807. In the bill itself, one can see that pragmatic concerns about implementation won out over the moralistic point of view. First, the bill contained provisions for the forfeiture of confiscated property, but such property would be under the jurisdiction of the district court were a slaving ship was seized. Provisions made for the "disposal" of confiscated slaves was not to "contravene" the laws of that specific state. This meant that if seized in Southern territory (which was the likely outcome), blacks would remain enslaved and be auctioned off nonetheless, completely contradicting the spirit of the act. Penalties were comparatively light, consisting primarily of fines.25 In December 1806, Mr. Hastings of Massachusetts had called for much stronger penalties: "It is certainly a crime of the highest order. Piracy, forgery, and sinking vessels with intent to defraud underwriters, are all punished with death. Yet these are crimes only against property; whereas the importation of slaves, a crime committed against the liberty of man, and inferior only to murder or treason, is accouted nothing but a misdemeanor."26 This is yet another example of the defeat of the moralists.
The Legacy of 1808: Post-Abolition Slave Trade
It is difficult to explain why it was moralist sentiment was not strong enough to carry the day. One possible explanation is that even though there was strong sentiment to abolish the trade in Congress, constituencies in the South were able to exert sufficient pressure to weaken the force of the law. The delegates to the Constitutional Convention could not have forseen the effect that Ely Whitney's cotton gin would have on Southern agriculture. The decades following the abolition of the slave trade show that United States did not have enough will to even enforce the laws they had passed. Illegal slave trade continued overland through Texas and Florida, while ships continued to smuggle slaves in through South Carolina.27 Even though Congress passed a law in 1820 making participation in the slave trade an act of piracy and punishable by death, it was not strongly enforced.
In the 1820's, the nature of the illegal slave trade changed somewhat. US ships were now primarily involved in the transport of slaves from Africa to other countries in North and South America like Cuba and Brazil. The British wanted cooperation from the Americans in the form of the mutual right of search and seizure. The Americans opposed this principle, not so much out of a desire to continue the slave trade, but out of a sense of national pride and an appeal to the freedom of the seas.28 The US's refusal to enforce its own anti-slave trade laws, as well as cooperate with other nations allowed the slave trade to continue for decades to come.
As we have seen from the case study of the 1808 law prohibiting the importation of slaves, the slave trade was an issue not easily defined and confronted. Despite its overt moralistic and humanitarian concerns, issues of commerce and politics overrode any other concerns in the formation of that aspect of US trade policy. Even before the heated arguments over slavery concentrated on the economic well-being of the South and the ideological differences between free state and slave, slavery was a controversial issue. It is ironic that the pragmatists argued that their provisions for the bill would ensure that it would be effectively enacted, when in truth it was too weak for real enforcement. This raises interesting questions as to the appropriate balance between humanitarian concerns and the practical commericial, legal and political matters that affect the formation of trade policy.
b. Geographic Site: Eastern North America
c. Geographic Impact: United States
b. Indirectly Related to Product: N/A
c. Not Related to Product: N/A
d. Related to Process: N/A
1807-1860 app.. 50,000, with the majority of these entering before 1830.31
In addition, 300,000 Africans were transported as slaves to various global destinations in the holds of 1,500 American ships.32
US Cotton Exports (in pounds)
Return to Description
Annals of Congress: The Debates and Proceedings in the Congress of the United States. Washington, DC: Gales and Seaton, 1855. 9th Congress, 1st and 2nd Sessions. Library of Congress Law Library.
Davis, David, Brion. The Problem of Slavery in the Age of Revolution, 1770-1823. London: Cornell University Press, 1975.
Exploring Amistad: http://amistad.mysticseaport.org/timeline/atlantic.slave.trade.html
Jones, Howard. The Webster-Ashburton Treaty. A Study in Anglo-American Relations, 1783-1843. Chapel Hill: University of North Carolina Press, 1977.
Miller, Randall, and John D. Smith eds. The Dictionary of Afro-American Slavery. New York: Greenwood Press, 1988.
Thomas, Hugh. The Slave Trade. The Story of the Atlantic Slave Trade: 1440-1870. New York : Simon and Schuster, 1997.